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Canada's trans* rights bill now endorses washroom bans

Canada's trans* human rights bill C-279 was amended by a Senate committee, in a way that makes it legal to ban trans* people from washrooms and gendered spaces appropriate to their gender identity.

Sen. Donald Plett, Conservative member of the Standing Committee on Legal and Constitutional Affairs, added a legal exemption for "any service, facility, accommodation or premises that is restricted to one sex only, such as a correctional facility, crisis counseling facility, shelter for victims of abuse, washroom facility, shower facility or clothing changing room." The amendment passed with six of the committee members supporting it, four opposed, and one abstention.

There were two other unanimous amendments made. One added the category of "sex" to the protections in the Criminal Code (which has long been a bizarre and serious omission from hate crimes legislation). The other removed the definition of "gender identity" which had been added in the House of Commons as a condition of passing the bill, back in 2013. Because the bill has been amended, it would need to return to the House for a final vote before being enacted. It is thought unlikely that the bill would be brought forward before an election call -- and now, if it did, the bill's original proponents would oppose it -- meaning that C-279 is almost certainly dead.

"The very act that is designed to prohibit discrimination is being amended to allow discrimination," the bill's Senate sponsor, Grant Mitchell, pointed out. "It holds people who are law-abiding, full-fledged and equal members of our society accountable for the potential -- the very, very long-shot potential -- that someone would misuse this to justify a criminal act." (The transcript has not been posted yet, but the videocast is still available)

Sen. Plett has long claimed that the bill would be exploited by pedophiles and rapists to attack women and children in washrooms, a claim that has been repeatedly debunked by law enforcement officials and other experts:

"Minneapolis Police Department: Fears About Sexual Assault "Not Even Remotely" A Problem. Minneapolis police spokesman John Elder told Media Matters in an interview that sexual assaults stemming from Minnesota's 1993 transgender non-discrimination law have been "not even remotely" a problem. Based on his experience, the notion of men posing as transgender women to enter women's restrooms to commit sex crimes "sounds a little silly," Elder said. According to Elder, a police department inquiry found "nothing" in the way of such crimes in the city... [Phone interview, 3/11/14]"

Additionally, criminal activity in a washroom or gendered space would continue to remain criminal regardless of the gender of the perpetrator. On the other hand, trans* women face very real dangers when institutionally housed with men or made to use segregated facilities according to their birth sex.

Nevertheless, bathroom-related fearmongering has been the cause of several petitions and campaigns to kill trans* human rights legislation in North America. It has also started to spawn draconian bathroom-policing bills (some of which ignore the actual genital status of the person, even though genitals are allegedly the rationale for the law):

"Building managers who "repeatedly allow" trans people to use the bathroom that accords with their gender identity would, however, face up to two years in jail and a maximum $10,000 fine under the proposed law.

"... If passed, the law could tighten how Texas defines gender, not only singling out transgender people, but those who have chromosomes that don't fit the strict definition laid out in the bill, like intersex individuals. The bill reads:

" For the purpose of this section, the gender of an individual is the gender established at the individual's birth or the gender established by the individual's chromosomes. A male is an individual with at least one X chromosome and at least one Y chromosome, and a female is an individual with at least one X chromosome and no Y chromosomes. If the individual's gender established at the individual's birth is not the same as the individual's gender established by the individual's chromosomes, the individual's gender established by the individual's chromosomes controls under this section..."

Plett's reasoning essentializes trans* women as being "biological males" ("and I will use 'men' because I believe they are biological men -- 'transgender,' but biologically, they are men"), and asserts that they are inherently a threat to cis* (non-trans*) women. When it was pointed out that his amendment would require trans* men to use womens' facilities, Plett appeared indifferent, and he later referred to a young trans* man as "she." Plett added that he believed his amendment would allow "separate but equal treatment."

Bill C-279 would affect only areas under federal jurisdiction, such as federal facilities, the Armed Forces, federal agencies, and First Nations reserves. But it had been seen as a potentially important symbol of human rights protection to have specific federal inclusion. Canadian human rights commissions consider trans* people written into legislation, but without explicit inclusion, there remains a possibility of an overturn in court precedent (where application is not as certain). Meanwhile, companies that take direction from federal legislation continue to not see a need to develop policies for trans* employees.

The Northwest Territories was the first Canadian jurisdiction to pass trans-inclusive legislation, in 2002. Ontario, Manitoba, Nova Scotia, Newfoundland and Labrador, Prince Edward Island, and Saskatchewan all have provincial protections. In British Columbia, a similar bill, M-211, has been blocked by B.C. Liberals, who refuse to allow it to face a vote or discussion.

Former Member of Parliament Bill Siksay first introduced a trans* human rights bill in 2005, and continued to reintroduce it in every Parliamentary session, until it eventually passed in the House of Commons. However, it was awaiting ratification in the Senate when a federal election was called, which killed the bill. In 2011, Siksay left federal politics, and Randall Garrison reintroduced it as C-279. In 2012, many trans* people stopped campaigning for the bill when the characteristic of gender expression was deleted from the bill, and a definition of gender identity was added.

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